Defendant appeals from the judgment of the Supreme Court, Bronx County (Denis J. Boyle, J.), rendered August 5, 2008, which convicted him, after a jury trial, of robbery in the first degree and imposed sentence.
The opinion of the court was delivered by: DeGrasse, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 10, 2012
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom, J.P. David B. Saxe Leland G. DeGrasse Helen E. Freedman Nelson S. Roman, JJ.
We find that defendant has not made a showing that he was denied effective assistance of counsel by reason of a conflict of interest that "operated on" or otherwise affected his defense at trial (see People v Konstantinides, 14 NY3d 1, 14 ).
The complainant, a livery cab driver, was robbed at gunpoint by two assailants, one of whom he identified as defendant. On December 29, 2004 at about 7:00 p.m., the robbers hailed the complainant's cab at Broadway and West 225th Street. Upon entering the vehicle, defendant sat in the rear seat on the passenger's side and the other individual sat on the driver's side of the rear seat. When the complainant stopped the vehicle at West 233rd Street between Broadway and Bailey Avenue, defendant grabbed his collar and announced a robbery. The complainant turned toward defendant and saw that he was holding a handgun. At defendant's demand, the complainant turned over his money, rings and cell phone. Defendant's accomplice pulled the complainant out of the cab and the two robbers drove away leaving him in the street.
At 8:00 p.m. that evening, Detective Treacy of the 50th Precinct and Police Officer Tunnock of the Evidence Collection Team responded to 3460 Bailey Avenue where the complainant's livery cab had been recovered. The complainant, who met the officers at the scene, spoke with Detective Treacy and described his assailants as Hispanic males who were approximately 20 years old and five feet, eight inches tall. The complainant said one weighed about 150 pounds and the other 160 pounds. Officer Tunnock dusted the cab for fingerprints and retrieved eight latent prints [*fn1]. Officer Tunnock also downloaded nine time-recorded images from the cab's video surveillance system to a disc and then uploaded the images to his laptop computer. The images reflected the period between 7:11 and 7:20 p.m. According to his trial testimony, Detective Treacy recognized the person depicted in the passenger-side rear seat as defendant, who happened to be the complainant in a robbery he investigated in 2002. Detective O'Neil, who was assigned to the instant case, testified that he recognized defendant as a person he had known for about five years.
Treacy and O'Neil picked defendant up at 3340 Bailey Avenue, an address half a block from where the cab was recovered. The detectives brought defendant to a precinct, where he was photographed and then allowed to leave. The complainant identified defendant from a photo array on December 31, 2004 and picked him out of a lineup on January 19, 2005. Defendant was arrested after being identified in the lineup. In response to pedigree questions, he stated that he was 20 years old, five feet, six inches tall, weighed 160 pounds and lived at the 3340 Bailey Avenue address. On February 5, 2005, defendant was indicted for robbery in the first degree, grand larceny, criminal possession of stolen property and related offenses.
Defendant was represented at trial by the Legal Aid Society. During jury selection, the assistant district attorney (ADA) shared with defense counsel information that the fingerprint found on the cab's window matched Elvis Montero's fingerprint. The ADA also turned over to counsel three photographs of Montero as well as a complaint follow-up (DD5) report that contained Montero's name as well as that of Franklin DeJesus. After the jury was sworn but before opening statements, defense counsel informed the court that Legal Aid had represented DeJesus during part of the time that it was representing defendant. Counsel obtained this information from another Legal Aid attorney who had secured an acquittal for DeJesus in a robbery case. The following colloquy ensued on the subject of a purported conflict of interest: "[DEFENSE COUNSEL]: . . . Now, earlier, a couple of days earlier, we became aware of the fact that Officer O'Neil or Treacy had investigated an individual named Franklin DeJesus . . . And it came to light that my firm, the Legal Aid Society, represented Mr. DeJesus, unbeknownst to me, simultaneous to my representation of Mr. Sanchez. And [another attorney], of my office, represented him, went to trial with him last year. And it came to light through . . . privileged communication that there is some connection between this individual, Mr. Montero, and Mr. DeJesus. We're not sure exactly what that connection is, but we know it's there, but it came to us through privileged information, therefore, raising the possibility of a conflict. Now, we've talked to the Court about it. I've discussed it at length with my two supervisors, and I mean at length. What we've arrived at is this, that there is no conflict regarding the issue surrounding Mr. Montero and his print that was lifted from this cab in question. We don't see any conflict there. There would only be a conflict were we to go into the issue of Mr. DeJesus. For evidentiary reasons and for just reasons related to common sense, we don't see a need to go into Mr. DeJesus, since there is no physical evidence connecting him to this crime. Therefore, so long as we don't actively go into Mr. DeJesus, we don't see the possibility of a conflict, although anything is possible at a later date, we don't know who might come out, as of this moment, we no longer see it. Of course, if the People go into Mr. DeJesus, they may drag me into a conflict in the middle of this trial, but . . . they've expressed no interest in going into Mr. DeJesus.So that's the bottom line, Judge.We see the possibility of potential for conflict, but we also see that there's not necessarily one there.So, we're not asking the Court to act on this, we're just reporting to the Court what our findings were. . . . Mr. DeJesus's information came to us last week. Mr. Montero's came to us yesterday. And the confidential information that came to me -- - actually came to me this morning for the first time. . . . With that in mind, we're ready to proceed. I have explained this to my client. THE COURT: [to the ADA] Is there anything the People wish to be heard on or any other matters before we proceed? [ADA]: . . . I just want the record to be clear that we have no information about this Mr. DeJesus. It's all based on speculation on defense counsel's part that, looking at a sealed folder and looking at a photo, comparing it to stills that were taken from the cab, that's his link that this is Mr. DeJesus. The name was provided to the detective by the defendant's brother. That was the only reason why the name appeared in one of the police reports."
The People's theory at trial was that defendant was the robber who sat in the rear seat on the passenger's side and held the gun. Defendant put forth alibi and third-party culpability defenses. With respect to the latter, defense counsel sought to place Montero, instead of defendant, in the passenger's side seat, saying the following in his opening statement: "But you're going to get to look at the photos from this taxicab; you're going to get to look at the photos of [defendant] proximately contemporaneous with his arrest in this investigation. And then you're going to hear some more evidence. You're going to hear evidence from someone from the police Forensic Unit . . . And he's going to tell you that eight fingerprints were lifted from this taxicab. And he's going to tell you that those eight fingerprints, which were taken from two doors and, I believe, inside and out, were compared to [defendant's] fingerprints. And he's going to tell you that none of those fingerprints that were lifted from that cab the night this happened were a match with defendant. You will also hear that those prints were matched up ...